Opinion
14-P-1801
12-08-2015
COMMONWEALTH v. JOSE ACEVEDO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On April 29, 2008, a Superior Court jury convicted the defendant of multiple offenses in connection with a home invasion committed by him and a codefendant. On direct appeal, this court affirmed the convictions. Commonwealth v. Merced, 81 Mass. App. Ct. 1107 (2012). Subsequently, the defendant filed a motion for a new trial, which was denied by the trial judge in an order dated February 26, 2014. Before us is the defendant's appeal from that order. We affirm.
The defendant, who represents himself, presses two arguments: (1) sufficiency of the evidence to establish that he was one of the perpetrators, and (2) the alleged closure of the courtroom during individual voir dire of prospective jurors. Neither argument has merit.
1. In evaluating sufficiency, we review the evidence, and the reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Here, even though the defendant's DNA was not recovered from the crime scene, there was ample evidence that he was one of the two men who committed the crimes: identifications by two eyewitnesses, evidence of the defendant's relationship with the codefendant (whose DNA was recovered), and evidence that the pair were stopped by the police two nights before the incident, while in a car that had been parked suspiciously outside the victim's residence.
2. Based upon the trial transcript, the prosecutor's affidavit, the judge's own recollection, and his knowledge of his customary practices, and without holding an evidentiary hearing, the judge was well entitled to reject the self-serving affidavit of the defendant and the equivocal affidavit of his trial counsel, and to find that the only individuals asked to leave the courtroom were other potential jurors, and not members of the public. In any event, where there was no objection at trial, and the issue was not raised on direct appeal, the defendant's claim of a violation of the right of public trial is procedurally waived. Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). Thus, even if there had been a courtroom closure, we would review the issue only to determine if a substantial risk of a miscarriage of justice arose. Ibid. As the defendant has not shown any prejudice resulting from the alleged closure, and there can be no "serious doubt whether the result of the trial might have been different," we discern no such risk. Commonwealth v. Randolph, 438 Mass. 290, 297 (2002) (citation omitted).
Order of February 26, 2014, denying motion for new trial affirmed.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 8, 2015.